Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court.

Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court Jan Crawford Greenburg The Penguin Press http://us.penguingroup.com 368 pp., $27.95

The late University of Chicago law professor Philip Kurland once remarked that "if the road to hell is paved with good intentions, then the Warren Court was greatest roadbuilder of all time." Conservatives' disaffection for the Supreme Court under Chief Justice Earl Warren's leadership touched off a four-decade campaign to remake the Court.

For much of that period, no wholesale reversal of course ever fully took hold--though not for lack of effort. In Supreme Conflict, Jan Crawford Greenburg, the Supreme Court reporter for ABC News, tells the fascinating story of the attempts, missteps, and triumphs of the battle for the Supreme Court. She not only tells the stories of nomination battles familiar to news junkies, but she also uses the justices' private notes to break new ground about what occurred behind the scenes. It is the story of the birth of the Roberts Court.

Two closely divided opinions in the most recent term exemplify the unending difficulties that attempts to remake the Court have faced. In Massachusetts v. EPA, the Court handed the Bush administration a stunning rebuke on global warming, finding that states could use litigation to force the U.S. Environmental Protection Agency to deal with the results of emissions from new cars and trucks.

Less than two weeks later, Gonzales v. Carhart upheld a federal ban on so-called partial-birth abortions, in part because it implicated "ethical and moral concerns that justify a special prohibition," even though the Court had struck down a similar Nebraska law in 2000. Carhart appeared to announce the arrival of a new conservative majority willing to assert its own views of the law, even in the face of contrary precedent. Still, exactly the same kind of shift had been prematurely announced before.

Whether the sitting Court is one without a clear legal and result-dictating ideology, or the conservative one in the making since 1969, often depends entirely on Justice Anthony Kennedy, whom many observers see as a judicial version of the indecisive Hamlet. Greenburg tells how a law clerk skit at the Court used the theme song from the 1960s television show Hipper each time the clerk playing Kennedy appeared.

President Reagan appointed Kennedy to the Court after the failed nominations of Judges Robert Bork and Douglas Ginsburg. Greenburg has closely followed Kennedy's development as a justice, as he has put himself on different sides of the Court's ideological divide on different issues. Though her well-written tale was published before this term's Carhart decision, Supreme Conflict appears to foretell Kennedy's ultimate position in that case.

When the Court heard oral argument in Casey v. Planned Parenthood, the pro-choice community despaired that Roe v. Wade would soon be consigned to the dustbin of history. Greenburg reveals that the initial vote at the Court's conference was 5-4 to uphold the restrictions on abortion that Casey ultimately invalidated. In fact, counting five votes on his side, Rehnquist circulated a draft majority opinion that effectively would have overturned Roe.

But Roe was preserved after Justices Sandra Day O'Connor and David Souter recruited Kennedy to join them in a special joint opinion that was based on the doctrine of stare decisis and announced the development of a new "undue burden" test for abortion restrictions. Nearly a decade later, when the Court used the new test to invalidate Nebraska's partial-birth abortion law, Kennedy wrote a vehement dissent, sounding a great deal like someone who had been had. After Greenburg's description of Kennedy's pique, it seemed inevitable on a new Court where Justice Samuel Alito replaced O'Connor that Kennedy would have an opportunity to vindicate his assumptions about what Casey would permit.

Greenburg enjoyably retells stories familiar to those who follow the Supreme Court closely, making them accessible to readers with only a casual familiarity with the Court and its lore. She also parts the Court's velvet curtains and provides a glimpse inside, based on interviews and Justice Harry Blackmun's recently unsealed notes, revealing information that even the most active members of the Supreme Court bar will find new.

One such revelation is the influence that Justice Clarence Thomas has had from the very start of his tenure. When Thomas emerged from his testy and controversial confirmation, it was widely assumed that he would be a Scalia follower, rather than a Court leader. Their frequent alliance in their first few years of service together seemed to confirm those assumptions.

But Greenburg blows up the common wisdom. Early on, Thomas was willing to dissent by himself, staking out a principled conservative position that all other members of the Court rejected. At least twice, Thomas's powerfully written dissent forced Scalia to rethink his position on the majority side and join the dissent, Greenburg reports. She also reveals that Thomas's extreme positions sufficiently startled O'Connor that they drove her into the opposing camp.

Greenburg also provides insight into the failed maneuvers that brought Alito and Chief Justice John Roberts to the Court. More than anything else, the Bush administration was determined not to repeat what it regarded as his father's error in nominating Souter, viewed as an unknown who had drifted leftward. Members of the administration, fearing that the president would select Attorney General Alberto Gonzales in order to nominate the first Hispanic justice, began saying that Gonzales was Spanish for "Souter."

Bush decided to go with someone he trusted implicitly: his own lawyer, Harriet Miers. Because of her unfamiliarity with constitutional doctrine that conservative scholars had honed so well over the years, the nomination set off a firestorm among those who had campaigned for a conservative Court. Alito, that crowd's longtime favorite, was quickly tapped after the Miers nomination imploded.

Greenburg's focus on the interactions of the justices and the routes they took to get to the bench is the book's greatest strength and most groundbreaking contribution. Light on legal substance but heavy on personal stories, Supreme Conflict makes the maneuvers that brought us the current Court come alive. While the book contains redundancies where Greenburg apparently doesn't trust the reader to remember information told earlier, that amounts to little more than a minor annoyance. In the end, Supreme Conflict is a terrific tale well told.

ROBERT S. PECK is president of the Center for Constitutional Litigation in Washington, D.C.